Citation Nr: 0001759 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 96-31 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for residuals of a compression fracture of the dorsal spine with loss of motion and demonstrable deformity of the vertebral body. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran's DD Form 214 shows he retired from active duty in October 1995, with over 20 years of military service. This previously came to the Board of Veterans' Appeals (Board) on appeal from a March 1996 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA), Regional Office (RO), which, in pertinent part, granted service connection and assigned a 10 percent disability rating for residuals of a compression fracture of the dorsal spine with loss of motion. The veteran filed a timely notice of disagreement, and was issued a statement of the case in May 1996. The RO received his substantive appeal in July 1996. In May 1998, the veteran presented testimony before the undersigned Member of the Board at a hearing held in Washington, DC. The Board remanded this case for additional evidentiary development in August 1998. Following compliance, the RO granted entitlement to an initial disability rating of 20 percent as the veteran is shown to manifest a deformity of the vertebral body. The veteran was informed of this favorable determination by rating decision and supplemental statement of the case issued in August 1999. This case has been returned to the Board further appellate consideration. FINDING OF FACT The veteran's compression fracture of the dorsal spine is primarily manifested by loss of motion due to pain and deformity of the vertebral body. CONCLUSION OF LAW The schedular criteria for an initial disability evaluation in excess of 20 percent for residuals of a compression fracture of the dorsal spine with loss of motion and demonstrable deformity of the vertebral body are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5285, 5291 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim of entitlement to an initial disability evaluation in excess of 20 percent for residuals of a compression fracture of the dorsal spine with loss of motion and demonstrable deformity of the vertebral body, is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. Generally, a claim for an increased evaluation is considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). VA also has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issue raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1 (1999), that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 (1999) which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 (1999) states that, in cases of functional impairment, evaluations are to be based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). See also DeLuca v. Brown, 8 Vet. App. 202, at 204-206, 208 (1995). These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. Because the veteran has perfected an appeal as to the assignment of the initial rating following the initial award of service connection for residuals of a compression fracture of the dorsal spine, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection until the present. See Fenderson v. West, 12 Vet. App. 119 (1999). In the instant case, the pertinent facts are not in dispute. The veteran's service medical records show that he sustained a compression fracture of the T12 vertebrae during a parachute jump in 1992. In conjunction with his present claim, the veteran was afforded VA examination in January 1996. On examination of the thoracic and lumbar spine, he claimed to have tenderness to percussion over the lower thoracic spine and the mid-lumbar spine. Range of motion of the lumbar spine was 80 degrees of flexion, 20 degrees of extension, 20 degrees of right and left lateral flexion and 30 degrees of right and left rotation. There was no obvious pain on motion. There were no neurological deficits noted. There were also no postural abnormalities or fixed deformities. Musculature was symmetrical, with no spasm. The diagnoses included status post history of hard parachute landing with crushed T-12 vertebrae. Although the examiner stated that he or she would be ordering X-rays of the thorax and lumbar spine, no X-ray reports were associated with the veteran's claims folder. A March 1997 office progress note obtained from Kenneth G. Ward, M.D. indicated, in pertinent part, that the veteran reported having been injured in an automobile accident earlier that month. An examination report of the veteran's spine associated with the progress note, indicated that there was no obvious kyphoscoliosis. He had tenderness to palpation and percussion in the lower thoracic region. Distal nerve neurovascular function appeared to be intact. Hyperreflexia was absent. Straight leg raising was negative. Reflexes were symmetric at the knee and ankle. Pathologic reflexes were absent. Motor strength appeared to be preserved. X-rays of the veteran's spine showed compression fractures at T-12, T-10 and T-8. However, when compared to films taken in the military in 1992, there was evidence that these injuries occurred at that point, although evidently only the fracture of T-12 was documented. The diagnosis was sprain of the thoracic spine with old compression fractures at T-8, T-10 and T-12. Dr. Ward was unable to identify any new fractures. In May 1998, the veteran testified at a personal hearing held by the undersigned Member of the Board in Washington, DC. He indicated that he had been involved in a parachute accident in late-March 1992, where he fell approximately 6200 feet without the lift of his parachute, landing on a drop zone. He stated that he had taken about three back over flips and was 'medivaced' off the drop zone. The veteran noted that was treated in the hospital for 10 days and placed on convalescence leave for 30 days. After service, he stated that he worked with computers and installed technical equipment at different sites around the world. He further indicated that if he has to sit at a computer for a significant period of time, i.e. more than an hour or so, he feels some discomfort and pain in his back. He also stated that his back becomes very tight and that he can feel muscle spasms in it, requiring him to take Motrin on a regular basis and Percocet on a semi-regular basis, 4 or 5 times a month. The veteran further testified that he had been treated on occasion by the service department for pain, and had recently been treated by a private doctor following a minor automobile accident; this doctor discovered that he did not have one but three fractured vertebrae, T-8, 10 and 12. He said that his doctor told him that the accident had aggravated an already existing situation. In view of the foregoing, the Board remanded this case for additional evidentiary development in August 1998. Pursuant thereto, additional treatment records were received from Dr. Ward in August 1998. The records reflect that the veteran was seen again in April 1997 with complaints of continued discomfort. The report concluded that time, rest, and anti- inflammatory medication would enable the veteran to return to his status prior to the March 1997 accident. In June 1997, the veteran was seen with some marginal improvement. The veteran's symptoms appeared to be lower and there was no evidence of any neurologic dysfunction. Additional treatment records received in August 1998 from Primus/Tricare Health Clinic, a service department outpatient facility, show that the veteran was seen in March 1996 with complaints of low back pain for about three to four days with no radicular symptoms. There was no weakness and straight leg raise was negative. Strength was 5/5 (normal). The assessment was lumbosacral strain. In February 1997, the veteran was treated for complaints of pain after a puppy had bitten his foot. He reported that he fell and hurt his back. There was full range of motion and no tenderness along the spine, except for tenderness on extreme range of motion. Straight leg raise was negative bilaterally. The veteran was also afforded VA examination in March 1999. The examiner reported that he had reviewed the veteran's claims file. The veteran complained of constant pain in the mid and upper sections of his back. He noted that he takes two Percocet per week and used ice application as well a Motrin tablets for relief. He reported that his pain is exaggerated with bending and lifting. He denied radiation. He also complained that he has night pains which wake him up. On physical examination, it was noted that the veteran was alert, cooperative and in mild distress. However, he was somewhat restless and had difficulty standing and sitting during the interview. His back was straight. There was no swelling, no redness, no deformity, and no muscle spasm. There was diffuse tenderness about the mid to lower thoracic spine. Elevation of his arms caused pain about the thoracolumbar area. X-rays revealed compression fractures of T8, T10, and T12. The T12 fracture had approximately 25 percent anterior compression. The examiner indicated that the veteran had difficulty with any movement of the thoracolumbar spine. Range of motion was approximately 60 degrees of forward flexion and 20 degrees of lateral bending on each side. The examiner commented that the reason for the veteran's present pain was unclear from the history and findings. His injuries in service should have healed by that time. There was no evidence of excess fatigability, incoordination, or weakened movement. Mechanically, the compression fractures should have had minimal effect on the dorsal spine and minimal effect on loss of motion. The examiner indicated that the veteran's limitation at that time was related to his pain symptomatology. The veteran's bone scan revealed no increased uptake area in the thoracic spine. The veteran's present 20 percent rating includes 10 percent for loss of motion due to pain of the dorsal spine under Diagnostic Code 5291 and an additional 10 percent for demonstrable deformity of vertebral body under Diagnostic Code 5285. Diagnostic Code 5285 pertains to residuals of fracture of the vertebra and provides a 100 percent rating with cord involvement, bedridden or requiring long leg braces and a 60 percent evaluation without cord involvement, abnormal mobility requiring neck brace (jury mast). In other cases, ratings should be awarded in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. Diagnostic Code 5291 pertains to the dorsal spine and provides for a maximum 10 percent evaluation for both moderate and severe limitation of motion. See 38 C.F.R. Part 4 (1999). Taking into account the medical evidence set out above, the Board finds that the preponderance of the evidence is against the veteran's claim for an initial disability rating in excess of 20 percent for residuals of a compression fracture of the dorsal spine with loss of motion and demonstrable deformity of the vertebral body. Inasmuch as the veteran current 10 percent rating is the maximum allowable for limitation of motion of the dorsal spine under Diagnostic Code 5291, further consideration of functional loss due to pain is not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, the evidence of record does not demonstrate that this disability is at all manifested by abnormal mobility requiring a neck brace, as would be required for a 60 percent disability evaluation under Diagnostic Code 5285, as noted above. Thus, the current level of disability shown is encompassed by the rating assigned and with due consideration to the provision of 38 C.F.R. § 4.7, an initial evaluation in excess of 20 percent is not warranted. An additional 10 percent for demonstrable deformity of vertebral body pursuant to Diagnostic Code 5285 has been assigned. As a preponderance of the evidence is against the veteran's claim for increased compensation, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107 (West 1991). Additionally, application of the extraschedular provisions is also not warranted in this case. 38 C.F.R. § 3.321(b) (1999). There is no objective evidence that this service- connected disability presents such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). (CONTINUED ON NEXT PAGE) ORDER A higher initial disability rating for residuals of a compression fracture of the dorsal spine with loss of motion and demonstrable deformity of the vertebral body is denied. A. BRYANT Member, Board of Veterans' Appeals